Monday, February 13, 2017
While Trump Distracts, Republicans Introduce Four Bills Restricting Ordinary Citizens’ Access to the Courts
Four bills have been introduced in Congress that would limit plaintiffs' access to the courts. The title of each bill is misleading, in that the effect of each bill would be very different from what its title indicates.
1. Probably the most far-ranging bill is the so-called "Fairness in Class Action Litigation Act of 2017," H.R. 985.
This bill would critically hobble class actions by making them much more difficult to certify and reducing the compensation to plaintiffs’ class action lawyers.
The major provisions of the bill with respect to class actions are (this is not an exhaustive list):
- Require plaintiffs seeking class certification in federal court, for a class “seeking monetary relief for personal injury or economic loss,” to “affirmatively demonstrate that each proposed class member suffered the same type and scope of injury as the named class representative or representatives.” Further, the court would have to make “a rigorous analysis of the evidence presented” on the foregoing requirement before certification.
- Prohibit “certification of any class action in which any proposed class representative or named plaintiff is a relative of, is a present or former employee of, is a present or former client of (other than with respect to the class action), or has any contractual relationship with (other than with respect to the class action) class counsel.”
- Prohibit the payment of any fees to class counsel until distributions to class members are completed.
- Limit the attorneys’ fees awarded to class counsel “to a reasonable percentage of any payments directly distributed to and received by class members,” not to “exceed the total amount of money directly distributed to and received by all class members.”
- Restrict the certification of “issue classes” under Federal Rule of Civil Procedure 23(c)(4).
- Stay all discovery in class actions “during the pendency of any motion to transfer, motion to dismiss, motion to strike class allegations, or other motion to dispose of the class allegations, unless the court finds upon the motion of any party that particularized discovery is necessary to preserve evidence or to prevent undue prejudice to that party.”
- Make the ruling on a class certification motion appealable as of right (rather than subject to the discretion of the appellate court).
Despite the bill’s title’s reference to class actions, it also deals with multidistrict litigation. The major provision of the bill relating to MDLs is (not exhaustive):
- “[C]ounsel for a plaintiff asserting a claim seeking redress for personal injury whose civil action is assigned to or directly filed in the [MDL] proceedings shall make a submission sufficient to demonstrate that there is evidentiary support (including but not limited to medical records) for the factual contentions in plaintiff’s complaint regarding the alleged injury, the exposure to the risk that allegedly caused the injury, and the alleged cause of the injury.”
2. The so-called "Lawsuit Abuse Reduction Act of 2017," (S.237 and H.R. 720) -- a perennial offering -- would amend Rule 11 of the Federal Rules of Civil Procedure to eliminate the 21-day "safe harbor" and to make sanctions mandatory instead of discretionary if a violation is found.
3. The so-called "Innocent Party Protection Act," H.R. 725, is a retread of the former “Fraudulent Joinder Prevention Act.” It imposes criteria to apply on a motion to remand a case that was removed to federal court on the basis of diversity, where one of the defendants is a citizen of the forum state and where the defendants claim that the joinder of that defendant is "fraudulent."
4. The so-called "Stop Settlement Slush Funds Act of 2017," H.R. 732, would prohibit the federal government from negotiating settlements that include, as described by advocacy groups, “payments to third parties to advance programs that assist with recovery, benefits, and relief for communities harmed by lawbreakers.”
Over fifty advocacy groups that work to maintain access to the courts for consumers, workers, and other plaintiffs, sent a letter to the House Judiciary Committee (link below). The letter opposes the last three bills listed above. (The class action bill was introduced after this letter was sent.)